6.12Given the significance of the “extradition offence” test, it is worth explaining how we envisage this test will work in practice.
6.13Under our new Bill two criteria must be met in all extradition cases: there must be an “extraditable person” and an “extradition offence”. For standard extraditions there is a third criterion of there being “a case to answer”. This is discussed in Chapter 9.
6.14To determine whether there is an “extraditable person”, the Court must, in effect, decide whether the person is the same person as the one described in the extradition request, and whether he or she has been accused or convicted of a foreign offence. In most cases, determining identity and the status of the person in the foreign criminal justice system is likely to be a relatively straightforward exercise. Once that step is complete, the Court will need to determine whether the foreign offence is an extradition offence. The Bill requires an examination of the foreign offence and any relevant domestic offence or treaty offence.
The need to identify the parallel offence in the Notice of Intention to ProceedTop
6.15An important innovation in the Bill is that the Central Authority must file a Notice of Intention to Proceed (NIP). This is discussed further in Chapter 8. Here it is sufficient to note that one of the main purposes of the NIP is for the Central Authority to identify at the outset the basis upon which it states that the foreign offence is an extradition offence. As explained above, two options are available: there can be an equivalent New Zealand offence, or there can be a treaty offence. We describe this as the parallel offence and, as explained above, this offence is important because it is the basis not only for determining whether there is an extradition offence, but also for determining whether there is a case to answer, as discussed in Chapter 9.
The place of the foreign offenceTop
6.16Without the allegation of a foreign offence there is no possibility of extradition. Our Bill requires that offence to be identified at the very beginning of the proceedings in the original request made to the Central Authority. Moreover, the foreign offence should be identified to the person sought in the NIP. The aim is to make it clear from the outset the offence for which extradition is sought. This is important because “extradition offence” is defined in our Bill with reference to the foreign offence. Thus, the question for the judge is: is the foreign offence an extradition offence?
6.17Significantly, however, our Bill makes it clear that for the third criterion (which only applies to standard extraditions) the judge will be concerned with whether there is a case to answer in terms of the New Zealand equivalent offence or the treaty offence. The foreign offence is largely irrelevant to this inquiry, as we discuss in Chapter 9.
Place of domestic offenceTop
6.18Without an equivalent New Zealand offence there can be no extradition, unless there is a relevant treaty offence or the request is from Australia. The existence of an equivalent New Zealand offence fulfils the dual criminality requirement. To determine whether this requirement is met, the Court must consider whether the conduct constituting the foreign offence, if committed in New Zealand at the time it is alleged to have occurred, would, if proved, have constituted an offence against New Zealand law. The Bill contains guidance on how this exercise should be conducted. In short, the two offences must have a degree of similarity, but it does not matter if the acts or omissions are categorised or named differently, or if the constituent elements of the offence differ.
6.19In relying on the fiction that the facts behind foreign offending occurred in New Zealand, sometimes there will be no parallel offence for technical reasons because of the way the New Zealand offences are described. The best example of this relates to tax law. A person may be charged with tax evasion in one country but it will never be the same as tax evasion in New Zealand as there will inevitably be significant differences in the way the countries structure their tax regimes. In keeping with the current Act, we have expressly recognised the difficulty with tax offending and dual criminality in the Bill.
6.20In other areas, the Court will always need to exercise a degree of judgement in deciding whether the two offences are similar enough to justify extradition. There is developing case law internationally that recognises a “doctrine of transposition” that may help judges in this regard. It applies to enable certain traits of the foreign country to be transposed into the New Zealand context to allow the dual criminality assessment to take place. However, we consider that beyond tax offending it is difficult to draw a bright line in relation to what it is and is not appropriate to transpose. Accordingly, we have left this matter to be developed through case law rather than statute. Taken to the extreme, the exercise of transposing the traits of the foreign country could undermine the entire point of having a dual criminality requirement. In the end, we consider that judges are best placed to address these issues on a case-by-case basis with reference to the general guidance we have provided in the Bill and the specific exception for tax offending.
Place of treaty offenceTop
6.21The current law provides that the requesting country can rely on the existence of an offence in a treaty rather than relying on an equivalent New Zealand offence. The ability to add offences that are not recognised in New Zealand, through treaties, is an important part of current international practice. Our draft Bill continues this approach but states the position more transparently.